3 How can the spouses arrange their property regime?
3.1. Which provisions can be modified by a contract and which cannot? Which matrimonial property regimes may be chosen?
The new Slovenian Family Code governs the institution of an agreement for the arrangement of property and legal relations. The agreement for the arrangement of property and legal relations is the contract in which the spouses agree on the content of their property regime which differs from the statutory one. Here, spouses can unanimously agree also on all other property relations for the duration of marriage as well as in the event of a divorce. Before the agreement on the arrangement of property and legal relations is concluded, the spouses have to inform each other of their property status or the agreement on the arrangement of their property and legal relations is contestable. A part of the agreement on the arrangement of property and legal relations could also be the agreement on a mutual support and an agreement on spousal support in the event of a divorce.
3.2. What are the formal requirements and who should I contact?
An admissible agreement between spouses and all of its amendments must take the form of a notarial authentic instrument.
The Agreement between spouses about their property and legal relations has to be concluded in the form of a directly enforceable notarial deed. Before the agreement is signed, the notary’s obligation for explanation is foreseen and the agreement is entered into the register of agreements about the arrangement of property and legal relations. If the agreement on the arrangement of their property and legal relations is not valid, the statutory property regime shall apply for the spouses. If the agreement on the arrangement of property and legal relations is not entered in the register of agreements about the arrangement of property and legal relations, then the presumption is valid in relation to third persons that the statutory property regime applies to property relations between spouses.
3.3. When may the contract be concluded and when does it come into effect?
Agreements stipulating that separate property shall belong to the common property may only be concluded during the marriage.
The agreement freedom applies: the contractual property regime applies to spouses from the time when the agreement on the arrangement of their property and legal relations is concluded, unless it contains a different agreement. The agreement on the arrangement of their property and legal relations which is concluded by the future spouses shall come into effect on the day of marriage or the day after marriage which is determined by the future spouses in the agreement on the arrangement of their property and legal relations.
3.4. May an existing contract be modified by the spouses? If so, under what conditions?
The agreement freedom applies: spouses may modify the already concluded agreement on the arrangement of their property and legal relations in the form of a directly executable notarial deed, and this modification is reported to the register of agreements on the arrangement of their property and legal relations.
3.5. Can a matrimonial contract be given retroactive effect according to the national law in your country, when spouses conclude this contract during marriage?
[This information is valuable for international spouses, who have since the European Regulation (EU) 2016/1103 of 24 June 2016 went into force on 29 January 2019 have the possibility to make a choice of law with retroactive effect, see article 22 par. 3 and 4 of the regulation. It is important to know if the national law accepts the making of a matrimonial contract during marriage with retroactive effect as well, so the choice of law and the matrimonial contract can both have retroactive effect.]
Article 85 of the Family Code stipulates that the contractual property regime shall apply to the spouse from the conclusion of the contract on the regulation of property relations, unless otherwise agreed in it. The contract on the regulation of property relations concluded by the future spouses shall take effect on the day of the conclusion of the marriage or on the day after the conclusion of the marriage determined by the future spouses in the contract on the regulation of property relations.
It is therefore possible to agree that the contract will take effect with a certain time delay, while an agreement on the retroactive validity of the contract on the regulation of property relations is not possible.
